Citation NR: 9602590
Decision Date: 02/02/96 Archive Date: 02/16/96
DOCKET NO. 94-06 957 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Togus, Maine
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Bridges, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1954 to May 1957.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 1992 RO decision which confirmed a
decision, entered in the preceding month, which denied
service connection for a nervous condition.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends his nervous condition first manifested
itself during active service when he was denied leave to
attend his brother’s funeral. Further, he asserts that he
became so angry that he fired a weapon at a bridge and was
hospitalized for psychiatric investigation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran's claim of service connection
for an acquired psychiatric disorder is not well-grounded and
must be dismissed.
FINDING OF FACT
There is no competent medical evidence of record which shows
that the veteran currently has a psychiatric disability
attributable to service.
CONCLUSION OF LAW
The veteran has not submitted evidence of a well-grounded
claim of service connection for an acquired psychiatric
disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107, 7104
(West 1991); 38 C.F.R. §§ 3.303, 3.309 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran served on active duty from May 1954 to May 1957.
Most of his service medical records are unavailable,
apparently having been destroyed in a fire at the National
Personnel Records Center.
Company sick reports from the 287th Military Police Company
indicate that the veteran was admitted to the hospital for
five days in May 1955. The records do not reflect the nature
of his illness or injury. At his hearing, he said that he
had been hospitalized for a psychiatric investigation
sometime in 1955.
A copy of a telegram and newspaper article submitted confirm
the death of the veteran’s brother during service, but such
evidence does not mention anything about the veteran’s
having a psychiatric illness.
The veteran has indicated that he was treated for depression
in 1978 by a private physician in Fort Pierce, Florida, but
the RO was unable to contact the physician at the address
provided by the veteran, its letter apparently having been
returned as undeliverable. He has also indicated that he was
a patient in the psychiatric ward at the VA hospital in
Togus, Maine, for six to eight months in 1985, but despite
its efforts, the RO was unable to obtain any records to
corroborate the veteran’s allegations.
VA outpatient treatment records, dated in January 1992 to
November 1993, reflect numerous hospital visits, but they
show no reflection of identifiable manifestations of a
psychiatric disability. During a VA psychiatric examination
in November 1993, the examiner indicated that no records of a
psychiatric nature accompanied the veteran. The examiner
found that the veteran appeared to be in a state of remission
from the two episodes of major depression and believed that
the episode during which the veteran said he was hospitalized
in service was a situational reaction to his brother’s death
and was not related to the subsequent development of
depression many years later, which was found to be an
entirely different disorder. Diagnoses included a history of
major depressive disorder in 1978 and 1985, presently in
remission, and a history of adult situational disorder in
1955, recovered.
Analysis
The threshold question to be answered is whether the veteran
has presented a well-grounded claim. 38 U.S.C.A. § 5107
(West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A
well-grounded claim is defined as a "plausible claim, one
which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Section 5107 provides that the
claimant's submission of a well-grounded claim gives rise to
VA's duty to assist and to adjudicate the claim. In short,
VA is not required to adjudicate a claim until after the
veteran has met his initial burden of submitting a well-
grounded one.
"Although the claim need not be conclusive, the statute [§
5107] provides that [the claim] must be accompanied by
evidence" in order to be considered well grounded. Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service
connection, this means that evidence must be presented which
in some fashion links the claimed disability to a period of
military service or an already service-connected disability.
See 38 U.S.C.A §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303,
3.310 (1994); Rabideau v. Derwinski, 2 Vet.App. 141, 143
(1992).
As should be done, due consideration has been given to the
fact that most of the veteran’s service medical records have
been destroyed in a fire. Consideration has also been given
to the allegations and testimony and documentary evidence
adduced here concerning the root cause of the veteran’s
psychiatric illness. While there is ample proof that the
veteran’s brother died while he was in service and it is
conceded that he is competent to testify about the
circumstances surrounding his brother’s death, being a
layman, he is not competent to testify concerning the cause
of his psychiatric disability, and the supporting documents
do not mention his developing a chronic psychiatric
disability as a result of service. While the 1993
examination report does reflect a history of depression, such
evidence shows that his disability is in remission. Further,
the examiner ruled out any relationship between the veteran’s
history of major depression in the 1970’s and 1980’s and the
adult situational disorder in service.
Since there is no cognizable proof that the veteran has a
current psychiatric disability attributable to service, his
claim for service-connected benefits is implausible. Hence,
there can be no valid claim. Brammer v. Derwinski, 3
Vet.App. 223, 225 (1992). Consequently, the claim is
dismissed. See Boeck v. Brown, 6 Vet.App. 14 (1993).
ORDER
The veteran’s claim of service connection for an acquired
psychiatric disorder is not well-grounded; therefore, the
appeal is dismissed.
M. CHEEK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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